Judge: Serena R. Murillo, Case: 19STCV20742, Date: 2022-08-30 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

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IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV20742    Hearing Date: August 30, 2022    Dept: 29

Kathleen Coleman v. City of Manhattan Beach, et al.

Tuesday, August 30, 2022 

TENTATIVE

Defendant Harris & Associates, Inc.’s motion for summary judgment is DENIED.

Legal Standard 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. 

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Evidentiary Objections

Defendant’s objections to Plaintiff’s evidence:

·       The following objections are OVERRULED: n/a

·       The following objections are SUSTAINED: 1, 2

Defendant’s objections to Plaintiff’s response to Defendant’s Separate Statement is OVERRULED.

Discussion 

Plaintiff alleges that on June 7, 2018, she fell because of a height deviation on the sidewalk, which is a dangerous condition of public property. Plaintiff’s first amended complaint (FAC) alleges a claim under the doctrine of res ipsa loquitur against Defendant Harris. The FAC alleges that the conduct and omissions of Defendant Harris are presumed to be negligent because: a) a large height deviation in the subject sidewalk would not have occurred unless someone was negligent in engineering/designing and inspecting the construction of the sidewalk; b) The injury sustained by Plaintiff occurred while Plaintiff was walking on the subject sidewalk that was engineered/designed and inspected by Defendant Harris; and c) Plaintiff's voluntary actions of walking on the sidewalk did not cause or contribute to her injury.

The Subject Location was part of a project that included roadway rehabilitation and reconstruction of concrete access ramps in the City of Manhattan Beach. (Defendant’s Undisputed Material Fact (UMF) No. 3.) Defendant was involved with this project as a result of an On-Call Professional Design Services Agreement to provide civil engineering services, which it entered into with the City, dated May 19, 2015, along with subsequent Amendments and Task Orders. (UMF No. 4.)

Defendant argues that Plaintiff is unable to proceed against Defendant on its sole cause of action, which relies solely on the res ipsa loquitor doctrine, as Defendant did not have control of the construction of the curb at the Subject Location, and was not responsible for its maintenance.

              Res Ipsa Loquitur

“[A]s general rule, res ipsa loquitur applies when the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442.) The conditions for the application of res ipsa loquitor are: (1) the accident must be of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. (Newing v. Cheatham (1975) 15 Cal.3d 351, 359.) Once these conditions have been met, a finding of negligence is presumed unless the defendant introduces sufficient evidence to sustain a finding that either (1) that the accident resulted from some cause other than the defendant's negligence, or (2) that the defendant exercised due care in all possible respects in which he or she might have been negligent. (Id. at pp. 364-365.) 

In determining whether the presumption of res ipsa loquitor applies, courts have relied on both common knowledge and the testimony of expert witnesses, and they have considered the circumstances relating to the accident in each particular case, such as the extent of control exercised by the defendant, the plaintiff’s own conduct, the likelihood of negligence from some third person, and, in some situations, evidence that the defendant is better able than the plaintiff to explain what happened. (Zentz, supra, 39 Cal.2d at p. 442.) 

Defendant argues that the construction of the ramp at the Subject Location was not caused by an agency or instrumentality within Defendant’s exclusive control. It presents evidence that Defendant provided standard designs for the roadway rehabilitation and reconstruction of concrete access ramps in the City, which included the construction of the ramp at the Subject Location. (UMF Nos. 3–5). However, the company that built the ramp at the Subject Location failed to follow the design, and thus, Defendant did not design the concrete access ramp at the subject location to include the height deviation that allegedly caused Plaintiff’s fall. (UMF No. 6.) Defendant also presents evidence that pursuant to its agreement with the City, Defendant was not required to provide: (1) Surveying or provide construction details or designs to comply with the requirements of the American with Disabilities Act; or (2) Construction management, inspection, certification, acceptance of the work, and/or to maintain it. (UMF No. 7.)

The Court finds that Defendant met its burden on summary judgment to show that the construction of the ramp at the Subject Location was not caused by an agency or instrumentality within Defendant’s exclusive control as it did not design the deviation at the subject location, and it did not construct, manage the construction, inspect or maintain the work at the subject location. The burden therefore shifts to Plaintiff to present triable issues of material fact.

To meet her burden, Plaintiff argues that Defendant did have control over the construction of the sidewalk/curb ramp area. Under the contract with the City, Defendant was required to “provide periodic field reviews and bring to the attention of the City of Manhattan Beach any defects or deficiencies in the work by the construction contractor which [Defendant] may observe.” (Perez Decl., Ex. 4, Attachment A, Sec. 8. D.) Thus, Plaintiff argues that Defendant was obligated to conduct periodic field reviews to bring to the attention of the City the defect created by the 2” height deviation constructed by the contractor because it was not in accordance with the Caltrans’ Standard A88A plans. (Id., Ex. 6.) Secondly, Plaintiff argues that Defendant had a duty after completion of the subject location to submit “as- built” plans to the City and “incorporate all changes to the plans ....” (Id., Ex. 4, Attachment A, Sec. 9.) Defendant’s engineer, Randall Bliss, admits that the contractor made a change to Defendant’s standard design plans by adding the “height differential.” (Bliss Decl., ¶ 7.) Defendant was therefore required to incorporate this change into “as-built” plans. Had such change been incorporated into as-built plans, it would have alerted the City, as well as Defendant, that the contractor had added a change to the sidewalk ramp not contemplated by Defendant’s plans. Had the City known the 2” height deviation was a defective change to the plans, the change could have been corrected prior to Plaintiff’s incident.

The Court finds that Plaintiff has raised triable issues of material fact as to the condition of control as there is evidence Defendant was required to provide field reviews and submit as built plans to the City including incorporating changes. As such, summary judgment is denied on this basis.

In the reply, Defendant argues that Plaintiff’s argument in her opposition relies on the On-Call Agreement. However, Defendant’s obligations with respect to the subject curb were based on Task Order No. 4, issued by the City, and not the On-Call Agreement. Further, Defendant argues that Task Order No. 4 set forth the scope of Defendant’s obligations with respect to the subject curb, which expressly excluded inspections and the preparation of as-built plans. (Berry Decl., Exh. C.)

However, the Court refuses to consider this evidence because it was filed for the first time in Defendant’s reply papers, with the declaration of Randell Berry. Nowhere in the evidence filed with motion for summary judgment is Task Order No. 4 found. Generally, a moving party on a motion for summary judgment may not rely upon evidence filed for the first time within its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313 [“While the [Code of Civil Procedure] provides for reply papers, it makes no allowance for submitting additional evidence [therein]”].) If the Court were to consider the evidence submitted for the first time within Defendant’s reply papers, this Court would violate Plaintiff’s due process rights as Plaintiff did not have notice or the opportunity to address the evidence upon which Defendant’s argument is based. (Id., at p. 316 [“Here, the evidence not only was omitted from the separate statement, it also was not filed until after [plaintiff] had responded to the issues raised in the separate statement. In considering this evidence, the [trial] court violated [plaintiff’s] due process rights. [Plaintiff] was not informed what issues it was to meet in order to oppose the motion”].)

Conclusion

Accordingly, Defendant’s motion for summary judgment is DENIED.

Moving party is ordered to give notice.